What Are Your Rights When You Have a Child With a Married Woman in Florida?

Not everyone’s family is destined to look like a “traditional family” from a 1950s “sit-com.” Some fathers will find themselves in the position of having children with women who are not their wives. These fathers may, like any other fathers, still desire a close relationship with their children. The level of complexity of Florida paternity cases may vary, depending on the circumstances, but all can benefit from the input of knowledgeable Florida family law counsel. One situation that can add extra layers of complexity occurs when the mother of your child is still married to someone else at the time of your child’s birth. A recent case from Broward County outlines some of the legal rights alleged fathers have in these situations.

In the case, a woman (“T.S.”) gave birth to a child in February 2013. The mother did not provide paternal information in the child’s birth certificate but did give the child a last name that did not match hers or her husband’s. Eventually, DNA tests showed that “C.P.,” the man whose last name matched the child’s, was the child’s father.

Two years later, the biological father filed a court action seeking a determination of paternity and child support, among other things. The mother argued that the trial court should throw the case out. Her argument stated that, when she gave birth to the child, she was married to another man (“S.F.”). This meant that the child was the product of an intact marriage and was presumed to be the legal child of S.F., and C.P. had no legal right to bring a court action for paternity.

The trial judge reluctantly agreed with the mother. The judge concluded that C.P. should have a role in the child’s life, but the law tied his hands. A biological father like C.P. “has no right to establish paternity of a child” when the child is born into an “intact” marriage, the judge declared.

The biological father appealed, and he won. The 4th DCA agreed with the biological father that the trial judge’s legal conclusion was incorrect. Florida law creates a very strong presumption that says that the husband of a child’s biological mother is presumed to be the child’s father. This is done in order to favor legitimacy and protect child welfare. Thus, if you are the biological father of a child born to a woman who’s married to another man, you often have a difficult hill to climb. In fact, had C.P. brought his case in some other parts of the state, he almost certainly would have lost, since the 1st DCA “has gone so far as to suggest that the presumption of legitimacy may never be rebutted.”

C.P. won his appeal, though, since the 4th DCA, which covers cases originating in Broward County (among others), has determined that biological fathers’ rights are not automatically extinguished just because the mother is married to another man. The presumption of legitimacy may be overcome in “certain, rare circumstances.” Those rare circumstances generally involve those in which “common sense” would indicate that the biological father should be allowed to pursue his case.

C.P.’s case mirrored one from 2005, Lander v. Smith. In each case, the mother was married but indicated to the biological father that she was getting (or had gotten) a divorce, the biological father had supported the mother and child financially, he had developed a parent/child bond with the child, and there was a lack of evidence of parental involvement between the child and the mother’s husband. The presumption of legitimacy, the court explained, exists to protect children from “uncertainty in their family lives.” In rare cases like the Lander case and C.P.’s case, enforcing the presumption of legitimacy and extinguishing all of the biological father’s rights would force the child into the exact sort of uncertainty the presumption was intended to avoid, the court stated.

Whether your family’s circumstances and relationships are more “traditional” or less so, your family law case is nevertheless unique, and experienced counsel can help. The knowledgeable South Florida paternity attorneys at Sandy T. Fox, P.A. have been helping people with paternity and other family law issues for many years. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.